Harvard Revisits the Insular Cases

The Harvard Law Review is re-examining the Insular Cases — the cases from the early 20th century which still dictate the fate of the unincorporated island territories of the United States.

For Puerto Rico, the renewed look at the historic legal cases could make a big difference. As the HLR admits, “At the turn of the century, the Harvard Law Review published much of the legal debate surrounding the relationship between the U.S. territories and the federal government: What should, and could, the U.S. Congress do with the territory it had acquired following the Spanish-American War? What part of the Constitution ‘follow[s] the flag’?”

The HLR was influential then, and that influence hasn’t waned over the past century. Right now, Puerto Rico is preparing for a new vote, perhaps the first federally-sponsored status vote, designed to give Puerto Rico a permanent status.

The Governor and the Residential Commissioner of Puerto Rico moved firmly to make sure that the upcoming vote could not be, as the 2012 vote was, considered controversial or unclear. On April 13th, the Department of Justice rejected the ballot, insisting that the current territorial status should remain on the ballot and that the Free Association option be clearly labeled as independence, to be sure that voters don’t confuse it with “enhanced commonwealth.” Puerto Rico is heading back to the drawing board to settle the requested ballot changes as quickly as possible. But there are many questions still being debated.

HLR has stepped in to offer clarification.

The Introduction

The Introduction to the special edition reviews the historical relationship between the U.S. and the unincorporated territories, and specifically the Insular Cases which together settled into the idea that Puerto Rico could be treated differently from the States, and could be kept in the unsatisfactory condition of an unincorporated territory indefinitely.

These cases and later cases based on them, the Introduction concludes, “have contributed to a damaging state of affairs in the territories. The territories receive ‘less in food stamps, welfare, and social security, and the protections of the federal minimum wage have also been restricted.‘ Look at Puerto Rico: In the wake of the island’s financial crisis, its doctors have left in droves. This exodus has been blamed in part on low Medicare and Medicaid payments. Medicaid covers nearly half of the island’s residents but its reimbursements fall far short of that same program’s payments on the mainland.Because of these conditions, Puerto Rico’s healthcare system is in a ‘state of emergency.'”

The same could be said of many elements of Puerto Rico’s infrastructure.

Chapter 1

Chapter I, an examination of Puerto Rico’s current political status, quotes a 20th century court case (United States v. Lebrón-Caceres) which held that “America’s territories lack even a modicum of sovereign independence from the federal government; rather, ‘territorial governments are entirely . . . creation[s] of Congress,’ which ‘retains plenary power over [them]’ so long as their territorial status persists.”

In June 2016, there were decisions in two Supreme Court cases about Puerto Rico ( Puerto Rico v. Franklin California Tax-Free Trust and Puerto Rico v. Sanchez Valle). These decisions, both of which confirmed that Puerto Rico had no separate sovereignty, were followed by the formation of the PROMESA fiscal oversight board.

These three events, the HLR suggests, were a step back from the federal government’s tradition of treating Puerto Rico “like a state.” The authors offer several examples of all three branches describing Puerto Rico as “like a state” and treating Puerto Rico “like a state.”

“Like a state,” however, is not the same as a state. “Since the Founding, U.S. territories — unlike the states they were theoretically destined to become — have been constitutionally ineligible for voting representation in Congress or the Electoral College,” the article points out. This is not a problem for the democracy-loving United States, the authors say, because under the original documents establishing the U.S., “territorial status is simply a temporary condition, one that gives Congress the necessary degree of authority to adequately prepare the territory to assume the obligations of statehood. Conceptually, a territory is not a colony of the United States; it is a state-in-waiting.”

The Insular Cases changed that, creating a new, unincorporated type of territory. “As a constitutionally unincorporated territory,” the article continues, “Puerto Rico is not on a path to statehood, but neither is it necessarily on a path to independence. Rather, it remains stuck in a constitutional limbo — a limbo of the Supreme Court’s creation.”

The authors quote the early Supreme Court justices as emphasizing that Congress would have to use its power “in good faith and honor” to put Puerto Rico on a path to statehood as soon as practical, or else be guilty of a “violation of duty under the Constitution.”

An invitation

Puerto Rico Report invites readers to read the articles discussed above and to weigh in in the comments with opinions.

3 Comments

In the 1899 – 1900 period as U.S. rule over Puerto Rico was being institutionalized, HLR did not merely provide a forum for discourse on territorial policy, it promoted the advocacy of HLS professors supporting imperial governance of the territory as a foreign domain of the U.S. outside the umbrella of the U.S. Constitution.

HLS and HLR had no objections and in fact supported U.S. governance not only of foreign territory but foreign peoples still classified as non-citizens under the same federal powers exercised under the Constitution in domestic territories. Never mind that the land and people so classified were outside the direct application of the Constitution under federal court rulings.

In contrast, the 1803 treaty with France provided that all people in the Louisiana territory were U.S. citizens, as did the treaty with Russia ceding Alaska, and the annexation law for Hawaii. On the basis of that fact, i.e. U.S. citizenship, in those cases more than any other consideration, the court would rule that the Constitution applied in those territories, which accordingly were deemed incorporated into the union until admitted as states.

In the case of Puerto Rico (like the Philippines) the status of the inhabitants was left to Congress, consistent with the imperialist policies promoted by HLR and HLS. As explained below, the imperialist policy advocated at both HLS and Yale Law School as well supported the legal theory of the Insular Cases holding that governing foreign people in foreign lands outside the Constitution, not under war powers but the Territorial Clause, was permissible.

Now HLR is attempting to rehabilitate itself by pretending to be an honest broker among the competing factions in Puerto Rico. That is transparently self-serving. Especially after the local political process, in defiance of federal failure to enable and encourage full democratization in Puerto Rico, has produced majority rule opposing both independence or continuation of the status quo, even if embellished by “enhancements” but still not fully democratic with equal citizenship rights.

To re-position the three factions in Puerto Rico on an equal footing as if no prior status votes have ever happened, now HLS is promoting the revisionist theory of Professor Sparrow that the Insular Cases created an “indefinite” or “permanent” unincorporated territory status that can just go on and on. In that context HLR tacitly entertains the notion that the current territorial status and the proposals for it to be enhanced to be treated as having equal legitimacy with statehood or independent nationhood.

But like the territorial “commonwealth” regime under a local territorial constitution in the Philippines, and in the Northern Marianas (the latter being a more evolved form of autonomy than Puerto Rico has attained), the territorial “commonwealth” regime in Puerto Rico can not morph into a new constitutional status to accommodate the faction that opposes statehood and independence. That is not something that can be done by an Article I, Section 8 statute, it would require an Article V amendment.

More fundamentally, the “good faith and honor” admonition quoted above from the Harvard publication meant nothing then and means nothing now except as it might relate to the threshold issue of citizenship. Until Congress decided the issue of citizenship, the unincorporated territory doctrine applied only to non-citizens, classified as “nationals but not citizens” under 1904 Gonzales v Williams ruling. As noted by Justice Brown in his opinion announcing the court’s ruling in the Downes case, the unincorporated territory status doctrine was based on the fact that Congress had not granted citizenship. If it had, the territory would have been treated as incorporated, or Congress and the courts would have had to come up with some other theory for denying incorporation leading to statehood.

Whatever the flaws in the Insular Cases doctrine of non-incorporation, at least the court recognized that it would not longer apply once citizenship was granted, because that would trigger the same incorporated territory status as every other territory with a U.S. citizen population since the Northwest Ordinance was adopted.

That is why the decision to deny U.S. citizenship in the Philippines was the predicate for the 1916 act of Congress declaring that territory would become an independent nation.

That is all prelude, because in order to understand Puerto Rico’s status today the focus must be not on the unincorporated status doctrine applicable to non-citizens, but on the 1922 Balzac case, which applied the unincorporated territory status for the first time in history to a territory after Congress conferred statutory birthright citizenship. That ruling was written by Taft, who had been Governor of the Philippines, who was glad that Congress had denied citizenship and incorporation there, who thought incorporation of Hawaii and Alaska was a mistake, and decided he would put a stop to incorporation of Puerto Rico.

And that is what he did, by ruling that Congress could govern citizens in Puerto Rico the same way it governed non-citizens in the Philippines, under the unincorporated territory doctrine of the Insular Cases, even though it applied only to territories prior to a decision on citizenship.

Taft’s attempts to gloss over the direct contradictions of his ruling with the court’s opposite conclusions in the Hawaii and Alaska status cases was as cavalier as it was cynical. So the idea still promoted by HLR that unincorporated territory status is constitutionally indefinite requires that we ignore the deviation of the Balzac ruling from the Insular Cases. Of course, Congress too has acquiesced in the Balzac ruling, because it means that granting citizenship is a consequence free action that does not trigger any constitutional responsibility in Puerto Rico different than governance of non-citizens in the Philippines.

That is why Congress willy nilly gave citizenship to Guam and CNMI and USVI. Why not? If it does not trigger incorporation it does not matter.

THAT is the real problem, because Congress should have understood and long ago rejected the logic of that ruling in exercising its authority and responsibility for democratization of the territories, leading to statehood or independence, and Congress still should, it’s not too late.

But since Congress so far has failed to reject Balzac, by finding better ways to advance the case of democracy in the territories, the territorial government in Puerto Rico finally overcame the colonial mentality of fear that made the choice between the only real status options seem too hard. The 2012 vote was historic, far more definitive than votes in many territories that became states. But Congress decided to sponsor a federally recognized vote to confirm the results, which was a huge step forward in the self-determination process.

Then it was reported that anti-statehood/anti-independence party lobbyists convinced some Republicans in the U.S. Senate to oppose the vote and urge the Department of Justice to refuse to certify the ballot as Congress had mandated. But the elected leaders in the territory argued that mandate was not one based on a legal standard of uniformity, conformity or unconditional agreement with federal territorial law and duly established policy. They instead it did not give the Department of Justice control over the options on the ballot or require that DOJ must be in agreement with admittedly strident advocacy content of the local plebiscite law and the ballot.

Rather, the local leaders argued that the statute requires DOJ to certify options “to resolve the status” issues on terms that are “not incompatible” with federal territorial law. That means the terms must not materially contradict or nullify federal law, not that there be no content that offends federal preferences for how terms for the ballot are expressed. Since the anti-statehood party and the Senators who took sides with that party demanded the status quo be added as an option, even though it does not resolve the status issue Puerto Rico complied with DOJ’s demands.

Indeed, Puerto Rico played it cool and revised the ballot to meet all DOJ points of objection. Now the elected leaders are calling on DOJ to use its power “in good faith and honor” to certify the new ballot and allow informed democratic self-determination to occur.

Of course, that DOJ intervention into internal politics of Puerto Rico has disrupted the balance that had been attained in the local democratic process to produce the ballot, based on well-understood equities of past status votes. Now the independence party (which had agreed to join the statehood party in a free and informed act of self-determiantion under the original ballot) is boycotting the vote because a colonial option is on the ballot.

Similarly, the anti-statehood/anti-independence party is threatening to boycott the vote because it does not want the current status on the ballot. Even though it has been humored in the abstract but rejected as law by Congress, the federal courts and the White House for 65 years, the anti-statehood party wants its proposal confederacy of co-sovereigns it calls “commonwealth” on the ballot, absurdly combining the most appealing features of both statehood and independence. That is merely a spoiler option used to prevent majority rule on statehood or independence in past votes.

So in the minds of statehood and independence supporters, once again the empire strikes back and disrupts democratic self-determination. The beat goes on ever since 1900! It is the same beat.

In fairness and to its credit DOJ did clarify that “free association” is not the “commonwealth” status proposed by the anti-statehood/anti-independence party. Rather, DOJ makes it clear “free association” is a form of independence that ends application of the U.S. Constitution and will put U.S. citizenship on life support even before the transition to nationhood.
So there can be full independence of independence with a treaty of “free association” allowing close relations during the transition to full independence.

Instead of anesthetizing readers with pedantic academic abstractions that are historically and legally sterile, HLR should be engaging in a live wire dialogue about how to solve the problem HLS helped create. Its 2013 symposium about revisiting the Insular Cases was embarrassingly revisionist and self-serving, proposing a 3 party deliberative process leading to approval of a local proposal for a solution by a majority.

The three parties have been deliberating for 118 years! The solutions are well understood, statehood or sovereign nationhood. The three parties don’t have anything to say to each other anymore, haven’t for many years. The Independence Party won’t recognize a majority vote unless it is for independence!

A vote for the current status is not a solution. So HLS’s contrived 3 party process just takes the process back to 1993, if not 1967, when plebiscite ballot included the phony “commonwealth” option. No status ever got a majority until statehood won over nationhood and the current status lost to itself in a separate up or down vote in a two tier ballot in 2012.

Time for HLS to stop trying to redeem itself by pretending to be neutral and starts talking about legal and political reality.

[…] relationship with the United States is based on the outdated and racist decisions in the Insular Cases. These Supreme Court decisions were motivated by racist views which were common a century ago when […]